- Historical Background
Unlike the United States, Canada was not created by a unilateral declaration of independence from the colonial occupation of England.
The claimant and defendant both lent money to a company (Y) under a credit facility. Y’s financial position deteriorated, the parties appointed investigating accountants and put Y into “workout”. Following an assignment of Y’s indebtedness to the claimant to the defendant’s subsidiary, the claimant brought proceedings against the defendant for breach of an anti-claim clause in the assignment.
As a result of their “open” nature, the various Personal Property Registry systems in Canada are occasionally the subject of abuse. For example, in the midst of a litigation proceeding, it may be inappropriately suggested that to prevent an adversary from transferring or dealing with their assets, a financing statement should be registered in order to annoy the other party or to scare off any potential transferees.
In a recent edition of Fully Secured (September 29, 2011 – Volume 2, No. 3), the decision of the Ontario Court of Appeal in Re Indalex Limited was discussed, in which the Ontario Court of Appeal held that a statutory deemed trust claim arising out of a pension plan wind-up deficiency ranked in priority to debtor in possession (“DIP”) financing.
There have been several recent developments with respect to this decision since the date of that publication.
The bank took a charge on the borrowers’ property. In January 1992, it demanded payment of the balance due under the secured facilities. In June 1992, it made a further formal demand specifically relying on the mortgage. One of the borrowers was subsequently made bankrupt. Periodically, the bank informed the borrowers that they continued to be liable and made demands for payment and referred to the mortgage.
Q: What is the difference between a general assignment of rents and leases and a specific assignment of rents and leases, and when should I include them in my term sheet for a commercial real estate financing of an Ontario property?
Valuation evidence
The court has reaffirmed that comparable sales evidence is the best evidence when determining the retrospective valuation of a property.
So, you’re a lender who has a perfected security interest in a large pile of limestone aggregate at a cement plant. Another lender has a perfected security interest in a pile of clay at that same plant. The aggregate and clay are crushed, and then ground and blended with other ingredients, before being heated in a kiln to produce a substance called “clinker”.
The case of White v Davenham Trust Ltd, has reaffirmed that a creditor can choose its own method of enforcing a debt which has been guaranteed even where it might hold security for that debt.
Q: I just found out from my back office that the only PPSA registration the bank holds against our borrower expired without having been renewed. Is it possible for the bank to file a late renewal and regain its first priority position against the borrower’s other secured creditors?